July 24, 2020
The National Labor Relations Board issued an HR Policy-supported decision allowing greater compliance with antidiscrimination laws by permitting employers to discipline an employee if it can be shown the employer would have taken the same action absent the protected concerted activity of the worker.
Reversal of Obama-era standard: Several instances of racially and sexually harassing speech made by employees in the workplace and on the picket line were given protection by the previous Board. In those cases, employers who disciplined such employees were found to be in violation of the NLRA. This time around, in General Motors, the Board changed course and reverted to a previous standard that offers far fewer protections under the Act for offensive speech in the workplace.
HR Policy's amicus curiae brief argued that racially and sexually harassing speech in particular—among other kinds of hateful speech—have no place in the workplace. We further stated that forcing employers to tolerate such speech puts them at odds with federal anti-discrimination laws, such as Title VII.
“The change is long overdue,” said Board Chairman John Ring in an op-ed announcing the decision in the Wall Street Journal. “It eliminates the conflict with federal, state, and local antidiscrimination laws and stops penalizing employers for complying with those laws.” The new standard enables employers to take meaningful action to ensure their workplaces are free of harassing language without fear of liability under the NLRA.
Outlook: The Board’s decision in General Motors does away with a paradox in which an employer would be liable under either anti-discrimination laws or the NLRA for how they dealt with harassing and offensive speech in the workplace. Employers should feel more comfortable taking disciplinary action to keep harassing speech out of the workplace, and review their workplace civility policies accordingly.